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Filing # 150399397 E-Filed 05/26/2022 03:57:49 PM
IN THE CIRCUIT COURT OF THE TWENTITH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIRCUIT CIVIL
POWELL-LINK, LLC, a Florida limited
liability company,
Plaintiff,
vs.
Case No: 21001153CA
MYAKKA PROPERTIES, LLC, a dissolved
Florida limited liability company, and
SUZANNE LOUDEN,
Defendant.
DEFENDANT’S MOTION TO SET ASIDE CLERK’S DEFAULT
COMES NOW, Defendants, MYAKKA PROPERTIES, LLC, a dissolved
Florida limited liability company, and SUZANNE LOUDEN, by and through their undersigned
counsel, and hereby files this Motion to Set Aside Clerk’s Default and states in support as
follows:
BACKGROUND
1 The initial Complaint in this action was filed with the Court on October 7, 2021,
in which Plaintiffs asserted a cause of action against Defendants based on alleged forgery on a
Law Offices
FARR, FARR, warranty deed for the Property located at 3600 El Jobean Road, Port Charlotte, Florida 33953,
EMERICH,
HACKETT, CARR lot #402121277004 resulting in the alleged fraudulent conveyance of the Property from
AND HOLMES, P.A.
ATTORNEYS AT LAW
Plaintiff to Defendants.
99 NESBIT STREET
PUNTA GORDA, FLORIDA
33950 2. Plaintiffs filed a Return of Service on May 9, 2022 indicating that Defendants
237 NOKOMIS AVE. S.
VENICE, FLORIDA
34285 were served with the Summons and Complaint on May 3, 2022.
3 Defendants contacted undersigned counsel’s office on May 13, 2022, but by
mistake or inadvertence it was not conveyed that Defendants had been served and the answer
was due May 23, 2022.
4 Undersigned counsel’s normal intake procedure is to determine if the potential
client has been served, but due to miscommunication between two secretaries as to who was
responsible for the intake, undersigned counsel was not aware Defendants were served.
5 On May 23, 2022, Defendants were contacted to have an initial consult with
undersigned counsel on May 25, 2022.
6. On May 24, 2022, Plaintiffs’ counsel filed a Motion for Clerk’s Default due to
Defendants having not retained counsel. There is no indication on the Motion for Default that
acopy of the Motion was sent to Defendants.
7 The Default was entered against Defendants on May 24, 2022. There is no
indication on the Motion for Clerk’s Default that a copy of the Motion was sent to Defendants.
8 Due to secretarial oversight, mistake, and inadvertence, undersigned counsel did
not meet with Defendants until May 25, 2022, and was not aware Defendants were served.
9. At the initial meeting, undersigned counsel learned that Defendants were served
and defaulted.
Law Offices
10. Upon learning of the Default, undersigned counsel called opposing counsel to
FARR, FARR,
EMERICH, resolve the Default.
HACKETT, CARR
AND HOLMES, P.A.
ATTORNEYS AT LAW 11. The next day, this Motion was filed.
99 NESBIT STREET
PUNTA GORDA, FLORIDA
33950
237 NOKOMIS AVE. S.
VENICE, FLORIDA
34285
LEGAL ANALYSIS
1 “Tt is axiomatic that Florida jurisprudence favors liberality in the area of setting
aside defaults in order that parties may have their controversies decided on the merits.” Somero
v. Hendry Gen. Hosp., 467 So. 2d 1103, 1104 (Fla. 4th DCA 1985).
2. A default must be vacated pursuant to Rule 1.540(b)(1) upon a showing of “a
meritorious defense, excusable neglect, and due diligence from the time of learning of
default.” Venero v. Balbuena, 652 So. 2d 1271, 1272 (Fla. 3d DCA 1995).
3 “TW]here inaction results from clerical or secretarial error, reasonable
misunderstanding, a system gone awry or any other of the foibles to which human nature is
heir, then upon timely application accompanied by a reasonable and credible explanation the
matter should be permitted to be heard on the merits.” Somero, 467 So. 2d at 1106.
4 The court “must grant the motion to set aside default if there is reasonable doubt
as to whether the moving party is entitled to relief.” Household Fin. Corp., III v. Mitchell, 51
So. 3d 1238, 1241 (Fla. Ist DCA 2011).
Excusable Neglect
5 As set forth above, Defendants contacted undersigned counsel timely and due to
secretarial oversight, mistake, and inadvertence, undersigned counsel did not make contact with
Law Offices
Defendants until May 25, 2022.
FARR, FARR,
EMERICH, 6. This type of secretarial mistake is the exact type of “secretarial error” and
HACKETT, CARR
AND HOLMES, P.A.
ATTORNEYS AT LAW “foibles to which human nature is heir” that Florida courts have recognized as grounds to set
99 NESBIT STREET aside a default.
PUNTA GORDA, FLORIDA
33950
237 NOKOMIS AVE. S. 7 In numerous analogous cases, Florida courts have found excusable neglect in
VENICE, FLORIDA
34285
the situation, like here, where a responsive pleading was not filed in response to a complaint
due to a clerical or secretarial error. See, e.g., Fla. Aviation Academy, Dewkat Aviation, Inc. v.
Charter Air Center, Inc., 449 So. 2d 350 (Fla. 1st DCA 1984) (error caused by secretary’s
failure to calendar time for filing response to complaint constituted excusable neglect and
default should have been set aside); Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA
1983) (secretary inadvertently clipping summons and complaint to other file and placing in file
cabinet constituted excusable neglect and default should have been set aside).
Meritorious Defense
8 In the Complaint, Plaintiffs assert one cause of action against Defendants based
on alleged forgery on a warranty deed for the Property located at 3600 El Jobean Road, Port
Charlotte, Florida 33953, lot #402121277004 resulting in the alleged fraudulent conveyance of
the Property from Plaintiff to Defendants.
9 “In the context of a motion to set aside a default, ‘meritorious’ means simply
that the defendant plans to raise a defense that may have some merit. The movant need only
show that the defense it has raised is meritorious, not that it is likely to succeed.” Mitchell, 51
So. 3d at 1241. Thus, the fact that Defendants have defenses that have merit is sufficient to
meet this element. The Multiple Listing Service (MLS) lists parcel numbers 402121277003 and
4021221277004 for sale for the price of $99,000.00. Defendants have a signed contract and
Law Offices
notarized warranty deed conveying both parcels from Plaintiff to Defendants, and Defendants
FARR, FARR,
EMERICH, paid $110,000.00 to Plaintiff in consideration for the conveyance of both parcels.
HACKETT, CARR
AND HOLMES, P.A.
ATTORNEYS AT LAW Due Diligence
99 NESBIT STREET 10. The relevant time period for due diligence purposes began when Defendants
PUNTA GORDA, FLORIDA
33950
237 NOKOMIS AVE. S. learned of the default, not when the default was actually entered. See Taylor v. Vitetta, 8 So.
VENICE, FLORIDA
34285
3d 1216, 1218 (Fla. 4th DCA 2009).
11. As set forth above, there is no indication that Defendants were sent a copy of
Plaintiffs’ Motion for Default or the Clerk’s Default.
12. The undersigned counsel and Defendants became aware of the Default on May
25, 2022.
13. Defendants retained undersigned counsel on May 25, 2022, the same business
day Defendants became aware of the Plaintiffs’ Motion for Final Default Judgment.
14. Not even one business day passed from the time that undersigned counsel
became aware of the Motion for Final Default Judgment and the filing of this Motion.
15. The timeliness of Defendants’ actions is evidence of Defendants due diligence
once they became aware of the Default. See, e.g., Gables Club Marina, LLC v. Gables Condo.
& Club Ass'n, Inc. 948 So. 2d 21 (Fla. 3d DCA 2006) (finding that eleven days between learning
of the entry of default and filing of motion to vacate was sufficient due diligence); Marshall
Davis, Inc. v. Incapco, Inc., 558 So. 2d 206, 207 (Fla. 2d DCA 1990) (finding that fifteen days
between defendant learning of lawsuit and motion to vacate final judgment is proof that
defendant was diligent in filling motion and default was to be set aside).
WHEREFORE, Defendants respectfully requests that the Default in this action be set
aside and that Plaintiff's Motion for Final Default Judgment be denied.
Law Offices CERTIFICATE OF SERVICE
FARR, FARR,
EMERICH,
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has
HACKETT, CARR
AND HOLMES, P.A. been furnished electronically via the Florida Courts E-Portal to Alexzander D. Gonano at
ATTORNEYS AT LAW
agonano@gh-law.com on this 26" day of May, 2022.
99 NESBIT STREET
PUNTA GORDA, FLORIDA
33950
237 NOKOMIS AVE. S.
VENICE, FLORIDA
34285
FARR, FARR, EMERICH, HACKETT, CARR
AND HOLMES, P.A.
BY: /s/ Will W. Sunter
WILL W. SUNTER, ESQUIRE
Florida Bar No. 0011448
wsunter@farr.com / alambert@farr.com
99 Nesbit Street
Punta Gorda, FL 33950
Telephone: (941) 639-1158
Attorney for Defendant
Law Offices
FARR, FARR,
EMERICH,
HACKETT, CARR
AND HOLMES, P.A.
ATTORNEYS AT LAW
99 NESBIT STREET
PUNTA GORDA, FLORIDA
33950
237 NOKOMIS AVE. S.
‘VENICE, FLORIDA
34285
Preview
Filing # 150399397 E-Filed 05/26/2022 03:57:49 PM IN THE CIRCUIT COURT OF THE TWENTITH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIRCUIT CIVIL POWELL-LINK, LLC, a Florida limited liability company, Plaintiff, vs. Case No: 21001153CA MYAKKA PROPERTIES, LLC, a dissolved Florida limited liability company, and SUZANNE LOUDEN, Defendant. DEFENDANT’S MOTION TO SET ASIDE CLERK’S DEFAULT COMES NOW, Defendants, MYAKKA PROPERTIES, LLC, a dissolved Florida limited liability company, and SUZANNE LOUDEN, by and through their undersigned counsel, and hereby files this Motion to Set Aside Clerk’s Default and states in support as follows: BACKGROUND 1 The initial Complaint in this action was filed with the Court on October 7, 2021, in which Plaintiffs asserted a cause of action against Defendants based on alleged forgery on a Law Offices FARR, FARR, warranty deed for the Property located at 3600 El Jobean Road, Port Charlotte, Florida 33953, EMERICH, HACKETT, CARR lot #402121277004 resulting in the alleged fraudulent conveyance of the Property from AND HOLMES, P.A. ATTORNEYS AT LAW Plaintiff to Defendants. 99 NESBIT STREET PUNTA GORDA, FLORIDA 33950 2. Plaintiffs filed a Return of Service on May 9, 2022 indicating that Defendants 237 NOKOMIS AVE. S. VENICE, FLORIDA 34285 were served with the Summons and Complaint on May 3, 2022. 3 Defendants contacted undersigned counsel’s office on May 13, 2022, but by mistake or inadvertence it was not conveyed that Defendants had been served and the answer was due May 23, 2022. 4 Undersigned counsel’s normal intake procedure is to determine if the potential client has been served, but due to miscommunication between two secretaries as to who was responsible for the intake, undersigned counsel was not aware Defendants were served. 5 On May 23, 2022, Defendants were contacted to have an initial consult with undersigned counsel on May 25, 2022. 6. On May 24, 2022, Plaintiffs’ counsel filed a Motion for Clerk’s Default due to Defendants having not retained counsel. There is no indication on the Motion for Default that acopy of the Motion was sent to Defendants. 7 The Default was entered against Defendants on May 24, 2022. There is no indication on the Motion for Clerk’s Default that a copy of the Motion was sent to Defendants. 8 Due to secretarial oversight, mistake, and inadvertence, undersigned counsel did not meet with Defendants until May 25, 2022, and was not aware Defendants were served. 9. At the initial meeting, undersigned counsel learned that Defendants were served and defaulted. Law Offices 10. Upon learning of the Default, undersigned counsel called opposing counsel to FARR, FARR, EMERICH, resolve the Default. HACKETT, CARR AND HOLMES, P.A. ATTORNEYS AT LAW 11. The next day, this Motion was filed. 99 NESBIT STREET PUNTA GORDA, FLORIDA 33950 237 NOKOMIS AVE. S. VENICE, FLORIDA 34285 LEGAL ANALYSIS 1 “Tt is axiomatic that Florida jurisprudence favors liberality in the area of setting aside defaults in order that parties may have their controversies decided on the merits.” Somero v. Hendry Gen. Hosp., 467 So. 2d 1103, 1104 (Fla. 4th DCA 1985). 2. A default must be vacated pursuant to Rule 1.540(b)(1) upon a showing of “a meritorious defense, excusable neglect, and due diligence from the time of learning of default.” Venero v. Balbuena, 652 So. 2d 1271, 1272 (Fla. 3d DCA 1995). 3 “TW]here inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits.” Somero, 467 So. 2d at 1106. 4 The court “must grant the motion to set aside default if there is reasonable doubt as to whether the moving party is entitled to relief.” Household Fin. Corp., III v. Mitchell, 51 So. 3d 1238, 1241 (Fla. Ist DCA 2011). Excusable Neglect 5 As set forth above, Defendants contacted undersigned counsel timely and due to secretarial oversight, mistake, and inadvertence, undersigned counsel did not make contact with Law Offices Defendants until May 25, 2022. FARR, FARR, EMERICH, 6. This type of secretarial mistake is the exact type of “secretarial error” and HACKETT, CARR AND HOLMES, P.A. ATTORNEYS AT LAW “foibles to which human nature is heir” that Florida courts have recognized as grounds to set 99 NESBIT STREET aside a default. PUNTA GORDA, FLORIDA 33950 237 NOKOMIS AVE. S. 7 In numerous analogous cases, Florida courts have found excusable neglect in VENICE, FLORIDA 34285 the situation, like here, where a responsive pleading was not filed in response to a complaint due to a clerical or secretarial error. See, e.g., Fla. Aviation Academy, Dewkat Aviation, Inc. v. Charter Air Center, Inc., 449 So. 2d 350 (Fla. 1st DCA 1984) (error caused by secretary’s failure to calendar time for filing response to complaint constituted excusable neglect and default should have been set aside); Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983) (secretary inadvertently clipping summons and complaint to other file and placing in file cabinet constituted excusable neglect and default should have been set aside). Meritorious Defense 8 In the Complaint, Plaintiffs assert one cause of action against Defendants based on alleged forgery on a warranty deed for the Property located at 3600 El Jobean Road, Port Charlotte, Florida 33953, lot #402121277004 resulting in the alleged fraudulent conveyance of the Property from Plaintiff to Defendants. 9 “In the context of a motion to set aside a default, ‘meritorious’ means simply that the defendant plans to raise a defense that may have some merit. The movant need only show that the defense it has raised is meritorious, not that it is likely to succeed.” Mitchell, 51 So. 3d at 1241. Thus, the fact that Defendants have defenses that have merit is sufficient to meet this element. The Multiple Listing Service (MLS) lists parcel numbers 402121277003 and 4021221277004 for sale for the price of $99,000.00. Defendants have a signed contract and Law Offices notarized warranty deed conveying both parcels from Plaintiff to Defendants, and Defendants FARR, FARR, EMERICH, paid $110,000.00 to Plaintiff in consideration for the conveyance of both parcels. HACKETT, CARR AND HOLMES, P.A. ATTORNEYS AT LAW Due Diligence 99 NESBIT STREET 10. The relevant time period for due diligence purposes began when Defendants PUNTA GORDA, FLORIDA 33950 237 NOKOMIS AVE. S. learned of the default, not when the default was actually entered. See Taylor v. Vitetta, 8 So. VENICE, FLORIDA 34285 3d 1216, 1218 (Fla. 4th DCA 2009). 11. As set forth above, there is no indication that Defendants were sent a copy of Plaintiffs’ Motion for Default or the Clerk’s Default. 12. The undersigned counsel and Defendants became aware of the Default on May 25, 2022. 13. Defendants retained undersigned counsel on May 25, 2022, the same business day Defendants became aware of the Plaintiffs’ Motion for Final Default Judgment. 14. Not even one business day passed from the time that undersigned counsel became aware of the Motion for Final Default Judgment and the filing of this Motion. 15. The timeliness of Defendants’ actions is evidence of Defendants due diligence once they became aware of the Default. See, e.g., Gables Club Marina, LLC v. Gables Condo. & Club Ass'n, Inc. 948 So. 2d 21 (Fla. 3d DCA 2006) (finding that eleven days between learning of the entry of default and filing of motion to vacate was sufficient due diligence); Marshall Davis, Inc. v. Incapco, Inc., 558 So. 2d 206, 207 (Fla. 2d DCA 1990) (finding that fifteen days between defendant learning of lawsuit and motion to vacate final judgment is proof that defendant was diligent in filling motion and default was to be set aside). WHEREFORE, Defendants respectfully requests that the Default in this action be set aside and that Plaintiff's Motion for Final Default Judgment be denied. Law Offices CERTIFICATE OF SERVICE FARR, FARR, EMERICH, I HEREBY CERTIFY that a true and correct copy of the above and foregoing has HACKETT, CARR AND HOLMES, P.A. been furnished electronically via the Florida Courts E-Portal to Alexzander D. Gonano at ATTORNEYS AT LAW agonano@gh-law.com on this 26" day of May, 2022. 99 NESBIT STREET PUNTA GORDA, FLORIDA 33950 237 NOKOMIS AVE. S. VENICE, FLORIDA 34285 FARR, FARR, EMERICH, HACKETT, CARR AND HOLMES, P.A. BY: /s/ Will W. Sunter WILL W. SUNTER, ESQUIRE Florida Bar No. 0011448 wsunter@farr.com / alambert@farr.com 99 Nesbit Street Punta Gorda, FL 33950 Telephone: (941) 639-1158 Attorney for Defendant Law Offices FARR, FARR, EMERICH, HACKETT, CARR AND HOLMES, P.A. ATTORNEYS AT LAW 99 NESBIT STREET PUNTA GORDA, FLORIDA 33950 237 NOKOMIS AVE. S. ‘VENICE, FLORIDA 34285